Montana Environmental Information Center v. Stone-Manning , 766 F.3d 1184 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANA ENVIRONMENTAL No. 13-35107
INFORMATION CENTER; SIERRA
CLUB, D.C. No.
Plaintiffs-Appellants, 6:12-cv-00034-
DLC
v.
TRACY STONE-MANNING, in her OPINION
official capacity as Director of the
Montana Department of
Environmental Quality,
Defendant-Appellee,
and
SPRING CREEK COAL COMPANY
LLC; GREAT NORTHERN PROPERTIES
LIMITED PARTNERSHIP; CROW TRIBE
OF INDIANS; INTERNATIONAL UNION
OF OPERATING ENGINEERS, LOCAL
400; WESTERN ENERGY COMPANY;
WESTMORELAND RESOURCES, INC.;
NATURAL RESOURCE PARTNERS
L.P.,
Intervenor-Defendants–Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
2 MEIC V. STONE-MANNING
Argued and Submitted
May 12, 2014—Seattle, Washington
Filed September 11, 2014
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY*
Environmental Law / Ripeness / Standing
The panel affirmed the dismissal for lack of subject-
matter jurisdiction of a citizen suit claiming that the Director
of the Montana Department of Environmental Quality would
violate duties imposed by the Surface Mining Control and
Reclamation Act by approving a pending application for a
mining permit.
The panel held that the plaintiffs lacked standing, and
their claims for declaratory and injunctive relief were not
ripe. The panel concluded that the plaintiffs’ alleged injury
was not imminent because, even assuming arguendo that the
Director would not do a proper cumulative hydrologic impact
assessment under the Act, the plaintiffs’ allegations did not
establish a substantial risk that the Director would grant the
permit application at all. Without deciding whether the firm
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MEIC V. STONE-MANNING 3
prediction rule applied under the circumstances of this case,
the panel held that the rule’s standards for ripeness were not
met because the panel could not make a firm prediction that
the Director would grant the mining permit application.
COUNSEL
Walton D. Morris, Jr., Morris Law Office, P.C.,
Charlottesville, Virginia, argued the cause on behalf of
plaintiffs-appellants. Megan Anderson O’Reilly, Western
Environmental Law Center, Taos, New Mexico, filed the
opening brief. With her on the opening brief were Morris and
Shiloh Hernandez, Western Environmental Law Center,
Helena, Montana. Hernandez filed the reply brief. With her
on the reply brief were O’Reilly and Morris.
Dana David, Department of Environmental Quality, Helena,
Montana, argued the cause and filed the brief on behalf of
defendant-appellee.
John C. Martin, Crowell & Moring LLP, Washington, D.C.,
argued the cause on behalf of defendants-intervenors-
appellees. Sherrie A. Armstrong, Crowell & Moring LLP,
Washington, D.C., filed the brief. With her on the brief were
Martin; Kristen L. Nathanson, Crowell & Moring LLP,
Washington, D.C.; Andrew C. Emrich, Holland & Hart LLP,
Greenwood Village, Colorado; Patrick R. Day, Holland &
Hart LLP, Cheyenne, Wyoming; and William W. Mercer,
Holland & Hart LLP, Billings, Montana.
Christopher B. Power, Dinsmore & Shohl LLP, Charleston,
West Virginia, filed the brief for Amicus Curiae Interstate
Mining Compact Commission, in support of the defendants-
4 MEIC V. STONE-MANNING
intervenors-appellees. With him on the brief were Robert M.
Stonestreet, Dinsmore & Shohl LLP, Charleston, West
Virginia, and Gregory E. Conrad, Interstate Mining Compact
Commission, Herndon, Virginia.
Ashley Brown, Alaska Department of Law, Anchorage,
Alaska, filed the brief for Amicus Curiae State of Alaska, in
support of defendants-intervenors-appellees. With her on the
brief was Michael C. Geraghty, Alaska Department of Law,
Anchorage, Alaska.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a challenge to potential approval
of a surface mining permit is ripe for judicial review.
I
Montana Environmental Information Center and Sierra
Club (collectively, “MEIC”) sued Tracy Stone-Manning, the
Director of the Montana Department of Environmental
Quality, in her official capacity. MEIC claims that Stone-
Manning will violate duties imposed by the Surface Mining
Control and Reclamation Act (“SMCRA”), 30 U.S.C.
§§ 1201–1328, by approving a pending application for Area
B of the Rosebud Mine. Invoking the statute’s citizen-suit
provision, 30 U.S.C. § 1270(a)(2), MEIC asked for
declaratory and injunctive relief.
MEIC V. STONE-MANNING 5
A
SMCRA establishes a “cooperative federalism” regime
for mining regulation. See Hodel v. Va. Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 289 (1981). Under
SMCRA, Congress “offer[s] States the choice of regulating
. . . according to federal standards or having state law
pre-empted by federal regulation.” New York v. United
States, 505 U.S. 144, 167 (1992) (citing Hodel, 452 U.S. at
288); see also 30 U.S.C. § 1253.
Montana adopted a regulatory program for non-federal
lands, see Mont. Code Ann. §§ 82-4-201 to -254, with the
approval of federal authorities, 30 C.F.R. § 926.10. Montana
also “enter[ed] into a cooperative agreement with [the federal
government] to provide for State regulation of surface coal
mining and reclamation operations on Federal lands within
the State.” 30 U.S.C. § 1273(c); accord 30 C.F.R. § 926.30.
B
MEIC argued that SMCRA requires Stone-Manning to
withhold approval of any permit application until she finds
that a cumulative hydrologic impact assessment (“CHIA”)
“has been made by the regulatory authority and the proposed
operation [“of all anticipated mining in the area”] has been
designed to prevent material damage to hydrologic balance
outside permit area.” See 30 U.S.C. § 1260(b)(3). According
to MEIC, this CHIA duty “effectively impose[s]” on Stone-
Manning three subsidiary duties to: (1) “formulate and apply
meaningful, objective material damage criteria that define the
conditions that would constitute ‘material damage to the
hydrologic balance’ outside the proposed permit area,”
(2) “include among the material damage criteria so
6 MEIC V. STONE-MANNING
formulated and applied each Montana water quality standard
applicable to each surface or groundwater resource that the
proposed mine may affect,” and (3) “rationally and
reasonably find, before approving any application for a new
or significantly revised mining permit, that the proposed
surface coal mining operation has been designed to prevent
material damage to the hydrologic balance outside the
proposed permit area.”
MEIC alleged that Stone-Manning and her predecessors
“have engaged in a pattern and practice of approving
applications for permits to conduct surface coal mining and
reclamation operations without” complying with the
subsidiary duties. This pattern purportedly shows that Stone-
Manning will not follow SMCRA when considering
Application 184, the pending application for a permit revision
for Area B of the Rosebud Mine. MEIC asked for relief in
the form of a declaratory judgment and “[a]n order
compelling [Stone-Manning] to comply with” the subsidiary
duties.
C
In the district court, Stone-Manning moved for dismissal
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Intervenors1 moved for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c). The district court
granted both motions, relying on four independently
1
The district court granted a motion to intervene filed by the Crow Tribe
of Indians, Great Northern Properties Limited Partnership, Natural
Resource Partners L.P., Spring Creek Coal LLC, Western Energy
Company, Westmoreland Resources, Inc., and International Union of
Operating Engineers, Local 400.
MEIC V. STONE-MANNING 7
sufficient reasons, including lack of ripeness.2 MEIC timely
appealed.
II
MEIC argues on appeal that the district court erred in
ruling that its claims are not ripe. It invokes the firm
prediction rule that originated in Justice O’Connor’s
concurrence in Reno v. Catholic Social Services, 509 U.S. 43,
67 (1993) (O’Connor, J., concurring in the judgment).
Intervenors contend that MEIC lacks standing to pursue an
unripe claim. We first analyze the constitutional limitations
on federal jurisdiction and then assess the impact of the firm
prediction rule.
A
1
Article III of the Constitution limits the jurisdiction of
federal courts to “cases” and “controversies.” U.S. Const. art.
III, § 2. To enforce this constitutional limitation, the
Supreme Court has articulated numerous doctrines that
restrict the types of disputes that federal courts will entertain,
including standing and ripeness.3
2
Because oral argument has already occurred, we deny MEIC’s motion
to expedite oral argument as moot.
3
We are concerned here with the constitutional aspects of standing and
ripeness. We need not analyze prudential standing or prudential ripeness.
See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014)
(refusing to “resolve the continuing vitality of the prudential ripeness
doctrine”).
8 MEIC V. STONE-MANNING
Constitutional standing has three components:
[A] plaintiff must show (1) it has suffered an
“injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision. An
association has standing to bring suit on
behalf of its members when its members
would otherwise have standing to sue in their
own right, the interests at stake are germane to
the organization’s purpose, and neither the
claim asserted nor the relief requested
requires the participation of individual
members in the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envt’l Srvs. (TOC), Inc.,
528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992), and Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
A dispute is ripe in the constitutional sense if it
“present[s] concrete legal issues, presented in actual cases,
not abstractions.” Colwell v. HHS, 558 F.3d 1112, 1123 (9th
Cir. 2009) (internal quotation marks omitted). In the context
of a declaratory judgment suit, the inquiry “depends upon
‘whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.’” United
States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003) (quoting
MEIC V. STONE-MANNING 9
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).
Ripeness and standing are closely related because they
“originate from the same Article III limitation.” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 n.5 (2014)
(internal quotation marks omitted) (“[T]he Article III
standing and ripeness issues in this case boil down to the
same question.” (internal quotation marks omitted)); id. at
2345–46 (citing Ohio Civil Rights Comm’n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 625–26 n.1 (1986), a
ripeness case, as part of a discussion of standing). As a
result, we have previously recognized that “in many cases,
ripeness coincides squarely with standing’s injury in fact
prong.” Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134, 1138 (9th Cir. 1999) (en banc) (“The
constitutional component of the ripeness inquiry is often
treated under the rubric of standing . . . . Indeed, because the
focus of our ripeness inquiry is primarily temporal in scope,
ripeness can be characterized as standing on a timeline.”).
2
Regardless of whether we use the verbal formulations
developed for standing or the ones developed for ripeness,
our analysis is materially unchanged.
a
MEIC asserts that its members will be harmed by mining
activity that will occur because Stone-Manning will fail to
comply with her CHIA duty. MEIC does not challenge the
approval of past applications; it challenges only the
anticipated approval of Application 184, which is currently
10 MEIC V. STONE-MANNING
pending. Because the alleged injury has not yet occurred,
MEIC is not suing over an “actual” injury. We therefore
must determine whether MEIC’s alleged injury is
“imminent.”
An injury is imminent “if the threatened injury is
‘certainly impending,’ or there is a ‘“substantial risk” that the
harm will occur.’” SBA List, 134 S. Ct. at 2341 (quoting
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147, 1150
n.5 (2013)). MEIC emphasizes that it alleged a pattern or
practice of Stone-Manning granting applications without
doing proper CHIAs. Assuming arguendo that those
allegations establish that Stone-Manning will not do a proper
CHIA for Application 184, they do not establish a substantial
risk that Stone-Manning will grant the application at all.
MEIC’s complaint is devoid of allegations about the
likelihood of Stone-Manning approving Application 184.4
Such omission is of crucial importance. MEIC argues
that its members will be injured by mining operations that
have not been subjected to a proper CHIA. But that mining
will occur only if Stone-Manning grants the application.
MEIC’s complaint did not allege a “substantial risk” of harm
because it did not allege a “substantial risk” that Stone-
Manning will approve the application.
4
MEIC alleges that the Department of Environmental Quality approved
Applications 161, 164, 166, 170, 172, 174, 175, 178, 180, and 182, but
does not allege anything about the other applications numbered between
161 and 182. We do not know whether the unmentioned applications
were approved or even whether they were similar to the mentioned ones.
The most that we can infer, then, is that the department approved at least
ten of the twenty-two applications in that range. Such frequency, about
45 percent, does not suffice to show a substantial risk that Stone-Manning
will approve Application 184.
MEIC V. STONE-MANNING 11
Even if we assume that MEIC can bring this suit on
behalf of its members, see Laidlaw, 528 U.S. at 181, its
members do not have standing. They have not suffered an
“actual or imminent” injury in fact. Id. at 180.
b
Analyzing the sufficiency of MEIC’s complaint under the
constitutional ripeness standard yields the same answer for
the same reasons. See Nat’l Org. for Marriage, Inc. v. Walsh,
714 F.3d 682, 688–89 & n.6 (2d Cir. 2013) (considering
ripeness and standing together because “[c]onstitutional
ripeness . . . is really just about” the injury-in-fact
requirement). Because MEIC does not allege a substantial
risk that Stone-Manning will grant the application, we cannot
characterize this dispute as “a substantial controversy . . . of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” Braren, 338 F.3d at 975. This
dispute is more an “abstraction[]” than an “actual case”
because the supposed injury has not materialized and may
never materialize. Colwell, 558 F.3d at 1123; see also Alcoa,
Inc. v. Bonneville Power Admin., 698 F.3d 774, 793 (9th Cir.
2012) (“We have dismissed claims that are based solely on
harms stemming from events that have not yet occurred, and
may never occur, because the plaintiffs raising such claims
have not suffered an injury that is concrete and particularized
enough to survive the standing/ripeness inquiry.” (internal
quotation marks omitted)).
B
To counter the argument that its claims are not ripe,
MEIC invokes the firm prediction rule. If the case is ripe
12 MEIC V. STONE-MANNING
under the firm prediction rule, MEIC argues, then it must also
have standing to bring the case.
1
The firm prediction rule originated in Justice O’Connor’s
concurring opinion in Catholic Social Services. In that case,
plaintiffs challenged regulations governing an “alien
legalization program.” CSS, 509 U.S. at 45. In the context of
this “benefit-conferring rule,” Justice O’Connor explained:
If it is “inevitable” that the challenged
rule will “operat[e]” to the plaintiff’s
disadvantage—if the court can make a firm
prediction that the plaintiff will apply for the
benefit, and that the agency will deny the
application by virtue of the [challenged]
rule—then there may well be a justiciable
controversy that the court may find prudent to
resolve.
CSS, 509 U.S. at 69 (O’Connor, J., concurring in the
judgment) (first alteration in original).
Although the Supreme Court did not adopt Justice
O’Connor’s standard, we did in Freedom to Travel Campaign
v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996) (applying
the firm prediction rule to a challenge to regulations
governing permission to travel to Cuba). See also Immigrant
Assistance Project of L.A. Cnty. Fed’n of Labor (AFL-CIO)
v. INS, 306 F.3d 842, 861–62 (9th Cir. 2002) (applying the
firm prediction rule to a challenge to INS policies and
practices governing illegal immigrants’ applications for
legalization).
MEIC V. STONE-MANNING 13
2
Without deciding whether the firm prediction rule applies
under the present circumstances, its standards are not met in
this case. We can no more make a firm prediction that Stone-
Manning will grant the application than we can conclude that
there is a substantial risk of her doing so.
Our precedent has not determined exactly how likely an
event must be for a court to make a firm prediction that it will
occur. Nonetheless, two considerations provide some
guidance. First, Justice O’Connor, the creator of the test,
equated being able to make a firm prediction that an event
would occur with that event being “inevitable.” CSS,
509 U.S. at 69 (O’Connor, J., concurring in the judgment)
(“If it is ‘inevitable’ that the challenged rule will ‘operat[e]’
to the plaintiff’s disadvantage—if the court can make a firm
prediction that the plaintiff will apply for the benefit, and that
the agency will deny the application by virtue of the rule
. . . .” (quoting Reg’l Rail Reorganization Act Cases, 419 U.S.
102, 143 (1974))).
Second, our previous cases have made firm predictions
when the plaintiff’s injury was nearly certain. In Freedom to
Travel Campaign, for example, the challenged regulation
permitted educational travel to Cuba only if the proposed
travel plans included at least one of two defined activities.
82 F.3d at 1436. Because the plaintiff’s “educational travel
plans include[d] neither activity and would be therefore
summarily rejected[,] its claims [were] ripe under [the firm
prediction rule].” Id. Similarly, in Immigrant Assistance
Project, we described the possibility that the government
would deny plaintiffs’ applications on any ground other than
the challenged rule as “remote.” 306 F.3d at 862.
14 MEIC V. STONE-MANNING
We cannot make a firm prediction about whether or not
Stone-Manning will grant the application. MEIC has failed
to allege that Stone-Manning’s approval is inevitable or even
particularly likely. Indeed, it includes no allegations at all
about the likelihood of Stone-Manning approving Application
184.5
III
For the foregoing reasons, the district court correctly
dismissed the case for lack of subject-matter jurisdiction.6
AFFIRMED.
5
Because the issue of ripeness is dispositive, we do not address the
district court’s alternative bases for dismissal.
6
MEIC has not argued on appeal, and did not argue below, that it should
be permitted to amend its complaint to add allegations that might affect
our ripeness analysis. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d
892, 901 (9th Cir. 2013) (ruling that arguments not presented in the
opening brief are waived); Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741, 749 (9th Cir. 2006) (refusing to order the district court to
allow amendment to a pleading when the party did not request leave to
amend below). Instead, it limited its argument to asking that we reverse
and remand for proceedings on the merits of its claims. We cannot do so.